October 12, 2001
Dear Representative:
The ACLU is urging Members to vote NO on the Rule, NO on final passage and YES on the motion to recommit. Sadly, most Americans do not seem to realize that Congress is about to pass a law that drastically expands government's power to invade our privacy, to imprison people without due process, and to punish dissent. More disturbing is the fact that this power grab over our freedom and civil liberties is in fact not necessary to fight terrorism. Briefly, the substitute bill has the following problems:
Sharing Sensitive Information without Privacy Protections: The bill authorizes law enforcement to "share criminal investigative information." This section permits the disclosure of sensitive, previously undisclosable information obtained through grand jury investigations or wiretaps about American citizens to the CIA, NSA, INS, Secret Service and military, without judicial review, and with no limits as to how these agencies can use the information once they have it, and without marking the information to indicate how the information can be used.
Sneak and Peek Searches: this section authorizes the wholesale use of covert searches for ANY CRIMINAL INVESTIGATION thus allowing the government to enter your home, office or other private place and conduct a search, take photographs, and download your computer files without notifying you until later. The Congress rejected this provision two times last year because it was misguided and overbroad.
Single-Jurisdiction search warrants for terrorism: This provision enables the government to go to a court in any jurisdiction where it is conducting a terrorism investigation, regardless of how insubstantial that location is to the investigation, to conduct a search anywhere in the country. This will allow the government to forum shop and make it practically impossible for individuals who are subjected to the search to challenge the search when the warrants are issued by a judge in a distant location.
New crime of Domestic Terrorism: This new crime is wholly unnecessary for the Administration's "War on Terrorism." It expands the ever-growing cadre of federal crimes by authorizing the federal government to prosecute violations of state law and may be used to prosecute political protestors who engage in acts the government considers to be dangerous to human life.
Requires People to Turn in Suspects Even If They Don't Know Whether the Person Has Committed a Crime. This bill creates a new crime exposing people to criminal liability for lodging a person who he or she knows "or has reasonable grounds to believe" has committed or is about to commit a crime. This places a new burden on persons to turn in family and friends never before imposed on individuals.
Disclosing Intelligence Information on Americans to the CIA : The bill MANDATES that the FBI turn over any information on terrorism, even if it is about American citizens, that is developed in criminal cases. This will result in the CIA getting back into the business of spying on Americans.
Imposing Indefinite Detention: The bill allows for non-citizens to be detained indefinitely, without meaningful judicial review;
Reducing Privacy in Student Records. The bill overturns current law by giving law enforcement greater access to and use of student records for investigative purposes. Under the substitute, highly personal and potentially damaging information about American and foreign students will be transmitted to many federal agencies and could lead to adverse consequences far beyond the stated goal of the anti-terrorism bill.
Sunset of Wiretap Provisions - The House Judiciary Committee's bill would have sunset all of the new wiretapping authorities in two years and two months. The sunset was designed to permit Congress to evaluate how the new authorities were being used, and whether there were abuses that would require additional privacy protections. The bill now pending before the House would gut the sunset provision by extending it to five years and three months (three years and three months, plus two more years upon a presidential certification).
Exclusionary Rule -- The House Judiciary Committee's bill included a provision to exclude from criminal cases evidence that law enforcement seized illegally when monitoring Internet communications. This would have conformed the rules pertaining to illegal interception of Internet communications to the rules governing illegal interception of telephone calls. The bill now pending in the House omits this provision.
Expansion of Wiretapping Authority -- The wiretapping provisions in the pending House bill are virtually identical to those in the bill the Senate approved last night. Both bills minimizes judicial oversight of electronic surveillance by:
subjecting private Internet communications to a minimal standard of review;
permitting law enforcement to obtain what would be the equivalent of a "blank warrant" in the physical world;
authorizing scattershot intelligence wiretap orders that need not specify the place to be searched or require that only the target's conversations be eavesdropped upon; and
allowing the FBI to use its "intelligence" authority to circumvent the judicial review of the probable cause requirement of the Fourth Amendment. Most of these provisions are unnecessary for fighting international terrorism; some would be acceptable if they were implemented with appropriate judicial oversight. Law enforcement agents make mistakes - for example, the life of suspected Atlanta Olympic bomber Richard Jewell was turned upside down. Essential checks and balances on these new powers are omitted from this legislation. We can be both safe and free if the House takes the time to do this right. Sincerely,
Laura W. Murphy
Director
Gregory T. Nojeim
Associate Director & Chief Legislative Counsel
